New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink

ATS SOUTHEAST, INC., et al. v. CARRIER CORPORATION
Court:TSC
Attorneys:
Fred C. Dance, Nashville, Tennessee, for the petitioners, ATS
Southeast, Inc., Rent-A-Driver, Inc., and Wood Transportation, Inc.
James A. Delanis, Jonathan J. Cole, Richard A. Stout, Nashville,
Tennessee, for the respondent, Carrier Corporation.
Judge: BIRCH
First Paragraph:
Pursuant to Tenn. Sup. Ct. R. 23, we accepted the following question
from the United States District Court for the Middle District of
Tennessee: Under the Tennessee Consumer Protection Act, "[d]oes a
corporation have standing to bring a private cause of action for
treble damages pursuant to Tenn. Code Ann. S 47-18-109(a)?" We answer
that it does. The Tennessee Consumer Protection Act defines, in Tenn.
Code Ann. S 47-18-103(7), "person" to include corporations, and
"persons" can seek treble damages available under Tenn. Code Ann. S
47-18-109(a). Therefore, we opine that a corporation has standing to
bring a private cause of action for treble damages under Tenn. Code
Ann. S 47-18-109(a).
http://www.tba.org/tba_files/TSC/ATS.wpd
STATE OF TENNESSEE v. STEPHEN MICHAEL WEST
Court:TSC
Attorneys:
Roger W. Dickson and Elisabeth B. Donnovin, Chattanooga, Tennessee,
and John T. Milburn Rogers, Greeneville, Tennessee, for the appellant,
Stephen Michael West.
Michael E. Moore, Solicitor General, Glenn R. Pruden, Senior Counsel,
Marvin S. Blair, Assistant Attorney General, William Paul Phillips,
District Attorney General, and Clifton Herbert Sexton, Assistant
Attorney General, for the appellee, State of Tennessee.
Judge: BIRCH
First Paragraph:
We accepted review in this case to resolve the apparent conflict
between Rule 52(b) of the Tennessee Rules of Criminal Procedure and
Tenn. Code Ann. S 40-30-111 (1990) (repealed 1995), which limits the
scope of review in post-conviction proceedings. In order to resolve
this issue, we will also address whether the plain error rule should
apply to claims deemed "previously determined" or "waived" under Tenn.
Code Ann. S 40-30-112 (1990) (repealed 1995). We find that the
appellant's (Stephen Michael West) current claim, which is being
raised for the first time on post-conviction appeal, has been both
"previously determined" by this Court pursuant to our
statutorily-required review of his death sentence and "waived" because
he failed to raise it on direct appeal. In such circumstances, Tenn.
Code Ann. S 40-30-111 (1990) (repealed 1995) controls the scope of
review and expressly prohibits post-conviction consideration of issues
deemed "previously determined" or "waived." As such, the issue West
now raises is beyond the scope of permissible post-conviction review,
and Tenn. R. Crim. P. 52(b), is inapplicable. Accordingly, the
judgment of the Court of Criminal Appeals is affirmed.
http://www.tba.org/tba_files/TSC/Wests.wpdBRENDA KAY (FOWLER) CROWE v. WAYNE EDWARD CROWE
Court:TCA
Attorneys:
J. Branden Bellar, Carthage, Tennessee, for the appellant, Wayne
Edward Crowe.
Jessica Dawn Dugger and Gregory S. Gill, Lebanon, Tennessee, for the
appellee, Brenda Kay (Fowler) Crowe.
Judge: FARMER
First Paragraph:
Wayne Edward Crowe (Husband) appeals the trial court's award to Brenda
Kay (Fowler) Crowe (Wife) of alimony in solido in the sum of $55,000.
Having determined that this award is contrary to the preponderance of
the evidence, we vacate that portion of the divorce decree.
http://www.tba.org/tba_files/TCA/crowebk.wpd
CLIFTON GOOLSBY v. UPPER CUMBERLAND OIL, INC.
Court:TCA
Attorneys:
William Joseph Butler, Lafayette, Tennessee, for the appellee, Clifton
Goolsby.
David Day, Cookeville, Tennessee, for the appellant, Upper Cumberland
Oil, Inc.
Judge: CAIN
First Paragraph:
This case concerns a lessee's attempt to renew a lease after the
expiration of the lease term and in the absence of language in the
lease designating a specific time frame for renewal. Upon the written
findings of the trial court we hold that the lessee failed to exercise
its option to renew the lease despite its tender of the increased rent
due under the renewal option. In keeping with our Supreme Court's
opinion in Norton v. McCaskill, 12 S.W.3d 789 (Tenn. 2000); we affirm
the trial court's determination on the record that Lessee is a
holdover tenant for the period of one year .
http://www.tba.org/tba_files/TCA/GoolsbyC.wpd
NEIL PRICE
VS.
TONI PRICE
CORRECTED OPINION
Court:TCA
Attorneys:
JAMES G. MARTIN, III
GREGORY D. SMITH
Farris, Warfield & Kanaday
424 Church Street, Suite 1900
Nashville, Tennessee 37219
ATTORNEY FOR PLAINTIFF/APPELLANT
ROBERT L. JACKSON
STANLEY A. KWELLER
Jackson, Kweller, McKinney & Badger
One Washington Square, Suite 103
214 Second Avenue North
Nashville, Tennessee 37201
ATTORNEYS FOR DEFENDANT/APPELLEE
Judge: CAIN
First Paragraph:
This case involves the dissolution of a seventeen-year long marriage.
The parties have raised on appeal issues involving spousal support,
child support, their partial marital dissolution agreement and
attorney fees. Upon a review of the record and the relevant law, we
find that the decision of the trial court should be reversed in part
and affirmed in part.
http://www.tba.org/tba_files/TCA/pricen.wpd
MARY ANNE GUNTER ROLLER v. STEVE RAY ROLLER
Court:TCA
Attorneys:
Clark Lee Shaw, Nashville, Tennessee, for the appellant, Mary Anne
Gunter Roller.
Calvin P. Tucker, Lebanon, Tennessee and Thomas F. Bloom, Nashville,
Tennessee, for the appellee, Steve Ray Roller.
Judge: CAIN
First Paragraph:
Mother appeals from the trial court's change of custody of minor child
to Father. Mother raises as issue on appeal trial court's finding as
to material change in circumstances warranting change of custody.
Specifically, Mother urges that the findings of the trial court were
insufficient to change custody under Tenn. Code Ann. S36-6-106. In
addition, Mother argues that the evidence preponderates against the
trial court's finding that the child in question was now living with
the father, that she was doing better in school under the father's
care, that the child preferred to live with the father, and that the
child unsuccessfully blended with Mother's new husband and
stepchildren. For the following reasons and under the authorities
cited below, we find no such preponderance and affirm the trial court
in all respects.
http://www.tba.org/tba_files/TCA/RollerMA.wpd
IN RE: S.B., et al.
Court:TCA
Attorneys:
Jennifer Davis Roberts, Dickson, Tennessee, for the appellants, Kerry
Mangrum and Tammy Mangrum.
Louise R. Fontecchio, Nashville, Tennessee, for the appellees, Barry
Baker and Deborah Baker.
Judge: COTTRELL
First Paragraph:
The trial court in this case approved the adoption of one sibling by a
couple who was unrelated to the child, but who had been caring for
her. The appeal was taken by another couple, relatives of the child,
who had been caring for and were allowed to adopt, in the same
proceedings, the other sibling. Appellants assert that their petition
to adopt both children should have been granted because of the
preferences for placement within a family and placement with siblings.
This court affirms the adoption as ordered by the trial court because
the trial court considered all preferences and other relevant factors
presented by the facts of this case and made a determination that the
best interest of the child favored continuity of placement. The
evidence does not preponderate against that finding.
http://www.tba.org/tba_files/TCA/SB.wpdSTATE OF TENNESSEE v. ROBERT JARNAGIN
WITH CONCURRING OPINION
Court:TCCA
Attorneys:
Carl R. Ogle, Jr., Jefferson City, Tennessee, for the appellant,
Robert Jarnagin.
Paul G. Summers, Attorney General and Reporter, Erik W. Daab,
Assistant Attorney General, C. Berkeley Bell, Jr., District Attorney
General, and John Dugger, Jr., Assistant District Attorney, for the
appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals his convictions and sentences for improper
passing and driving under the influence. We affirm the trial court as
we are not persuaded that insufficient evidence supported the
convictions, that the admission of the breathalyzer results was error,
that the admission of the field sobriety results was error, or that
the sentences were excessive.
http://www.tba.org/tba_files/TCCA/JarniganR_opn.wpd
CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/JarniganRC_con.wpd

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